The typical timeline for a full probate process can take anywhere from 12 to 18 months, and that’s assuming everything goes smoothly. No disputes, no complications, just straightforward probate administration and management before final distribution.
Realistically, the process could take longer. The will, if there is one, could be disputed; interested persons who were not notified could come to court and dispute the entire process; or the title and ownership of estate properties could be disputed. In each case, the issues of these conflicts would need to be resolved by the court before the estate can close.
The good news is that the heirs and the personal representative do have options to fast track some areas of the probate process. California law affords interested persons some measure of relief from the traditionally cumbersome process of probate to speed up some parts of the process and expedite estate transfers.
This is where the assistance of a good probate attorney can prove invaluable. During the first 30-40 days after the death of the decedent is the time for formulating strategies. A good review of the estate, and identifying whether the estate is qualified or eligible for simplified or expeditious transfers, can mean the difference between a quick resolution versus a year-long probate.
Each of the processes or methods described below operate separately, but together can form an overall strategy to increase the efficiency of probate.
The Small Estate Affidavit
Your probate attorney can help you determine whether the estate qualifies as a small estate under California law. This means that the gross value of the estate should not exceed the statutory threshold set by law – which should be double-checked because the values change depending on the date of death. The basis for what is considered “gross value” at the time of death should also be double-checked – an additional property that drives the gross value beyond the statutory threshold would automatically disqualify the estate from being considered a small estate.
If the estate does qualify as a small estate, then the personal representative should refrain from filing a petition for probate. The small estate affidavit method typically requires a 40-day waiting period within which no formal estate must have been initiated.
If all other requirements are met, then the personal representative or the decedent’s heirs and successors can simply fill up the affidavit form and, together with other required documents such as proof of ownership of property and the decedent’s death certificate, use it to facilitate the transfer of property to the heirs and successors without need of going through formal probate.
Transfers of Real Property
The affidavit discussed above only applies to personal property. It does not apply to real properties.
This is because real properties have their own unique method of expedited transfers.
The Affidavit re Real Property of Small Value
Similar to the Small Estate Affidavit, but applicable to real property instead of personal property, is the Affidavit re Real Property of Small Value.
This is utilized under Probate Code §13200, and requires the passage of at least six months from the date of death before one can be filed. No formal probate proceeding must have been initiated, and the value of the property must not exceed the statutory threshold (for those who passed away after April1, 2025, the value must not exceed $69,625).
Petition to determine Succession to Real property
Under Probate Code §13150, heirs can also make use of a petition to determine succession to real property.
Obviously, this involves a court proceeding, but one that is far more efficient than a full probate.
This petition also requires a 40-day waiting period after the date of death of the decedent. This is generally used when no formal probate proceeding has been initiated. However, this admits of one crucial exception – even if probate has begun, if the personal representative provides written consent and the property is the decedent’s primary residence, the court may still allow the petitioner to use this method of transfer for estate property.
When do you use a §13150 Petition and when do you use a §13200 Affidavit?
The choice depends on whether the property qualifies under the statutory value limits. Both options apply only to small estates, but the §13150 petition can be used for higher-value real property, providing a simplified transfer after 40 days through a simplified court process.
On the other hand, the §13200 affidavit is limited to much lower-value property and requires a six-month wait, but avoids court entirely. In practice, the petition is used when speed is the priority, while the affidavit is used for very small properties where minimizing cost and formality matters more.
Independent Administration of Estates Act (IAEA)
If the estate is not eligible as a small estate, probate proceeds as usual. But even within a full probate proceeding, there are ways to facilitate speedy procedures.
Under the Independent Administration of Estates Act (IAEA), a personal representative may be given either full or limited authority. The difference between the two is in what the personal representative is able to do without waiting for court approval.
If a personal representative is granted full authority under the IAEA, he or she can:
- Sell real property
- Exchange real property
- Grant an option to purchase real property
- Borrow money with the loan secured by an encumbrance upon real property
The personal representative with limited authority cannot do these things unless there is prior court approval. Full authority dispenses with this requirement. Instead of court approval, the personal representative with full authority under the IAEA is required to send a Notice of Proposed Action (NOPA) to all interested parties. If no objection is received, the personal representative can proceed with the proposed action.
Effectively, court approval is replaced with the affording interested parties the opportunity to object. This is important – full authority under the IAEA does not mean unrestricted authority to do what he or she wants.
Preliminary Distribution
Perhaps one of the most frustrating thing about probate proceedings, from the point of view of the heirs, is that they have to wait until everything is settled and the estate is closed before they can receive their share of the estate.
For surviving family members dependent on the very assets left by the decedent, this can be an uncomfortably long wait.
California Probate Code §11620 is designed to address this gap.
Once the petition for probate is filed and the court issues the letters to the selected personal representative, an heir or beneficiary can file a petition for preliminary distribution.
The waiting time in this scenario is a minimum of two months after the letters are issued. The heir can then seek preliminary distribution of all or a portion of the share to which a beneficiary is entitled.
The two months waiting period is a minimum time period, however, and assumes that all creditor claims have been filed and are accounted for. Realistically, since the time for filing creditor claims is up to four months after the letters are issued, practicality suggests that the petition for preliminary distribution should be filed after four months have expired.
The person seeking preliminary distribution must also be able to show that granting the petition will not prejudice the estate or the interests of creditors. This means that the estate has sufficient assets to cover liabilities before preliminary distribution is made. Alternatively, the court may require the petitioner to file a bond that would be answerable for creditor claims or any unexpected costs or expenses.
Done correctly, a petition for preliminary distribution is a good way to fast track distribution to the decedent’s heirs – particularly when they really need it, rather than waiting for the full probate process to run its course before distribution. But to do so effectively requires careful calculation, a good balancing of interests, and an excellent birds’ eye view of the estate’s assets and liabilities.
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Whether you are a personal representative administering a probate estate or an heir awaiting distribution, it is advisable to consult a probate attorney to identify any available options for expediting the resolution of the estate.